Litigation Vs. Alternative Dispute Resolution (ADR)
At some point in life, and perhaps several times, you will be faced with a dispute that needs to be settled and you must decide just how to reach a solution. Court based adjudication and ADR are two of the methods used in settling those disputes; and distributive and integrative are two types of bargaining utilized in the ADR processes.
Litigation (Court Based Adjudication)
Litigation is a lawsuit to be decided in court before a judge or jury. However, litigation can be intimidating and risky for the litigants. In addition, because court proceedings are adversarial, a battle between lawyers, the truth is not always the end result. A prominent New York defense attorney and Criminal Court Judge said in all honesty, “I have nothing to do with justice…Justice is not even part of the equation.”
Through the courts and litigation you can obtain money, put a stop to certain activities, and have statutes and documents interpreted; but the outcome is that one person wins and one loses. Litigation is expensive, sometimes prohibitively, preventing some from taking their cases into the courts. Even if one can afford litigation, then you must face the crowded court docket and be willing to wait as the lengthy process begins – a lengthy process which keeps disputes broiling and relationships torn apart.
An additional issue is the fact that the dispute must be able to be translated into legal issues – so some disputes that seem real may not be able to be framed into a legal issue that can be decided in court.
On the plus side, litigation ends in a decision that is binding and enforceable; and it is appealable. Adjudication is public and has more safeguards than many other processes. Secondly, court decisions are based on precedent and are more predictable than alternative resolutions which can be formulated by the neutral party.
In the final analysis, each person deserves their day in court if that is the method they prefer. However, regardless of the pros and cons of litigation, one major consideration in making a decision as to the resolution method is the importance of the relationship between the two parties in the dispute. In litigation most relationships are left unable to be repaired. If your relationship with the opposing party is important to you or it is one that must be maintained, it is time to perhaps consider an ADR process.
Alternative Dispute Resolution (ADR)
ADR is a series of methods for settling disputes other than court based adjudication. There are several ADR processes which can be voluntary or ordered by the courts. Some states require persons to enter into arbitration or mediation before their case can be heard in court. Hoping the case can be settled in this manner, states do this for economic reasons as well as to assist in clearing court dockets. In other cases such as employment and some other contracts, arbitration is required for settling disputes. In these contractual cases arbitration decisions are final and cannot be appealed in court in most instances.
One of the objections to litigation is that it can be intimidating – the powerful against the weak – the rich against the poor. The fact is that some forms of ADR like arbitration can prove to be just as intimidating.
Methods of negotiation in ADR can be divided into two basic types: distributive; and, integrative.
Distributive negotiating has a win or lose outcome – the pie only has so many pieces and the more one side gets, the less the other side has. Most often this type of bargaining is utilized when there are fixed resources in dispute such as money or property. Personal relationships are low on the scale of importance.
Distributive processes are often criticized because they put emphasis on the parties’ differences and lead to destructive actions. To be successful in distributive negotiating parties must guard their information and try to get as much information from the opponent as possible. Hardball is often necessary in distributive techniques and relationships become second place or are neglected and ignored.
Even when some cooperative bargaining techniques may prove beneficial and are put in place, there may be portions of the negotiations that can only be settled by dividing the pie or using distributive techniques.
Integrative bargaining is interest based and looks for a win/win solution. These techniques encourage cooperative problem solving which addresses all parties’ needs and interests. Negotiators here envision a pie with more unlimited pieces and desire an outcome that will maintain, rather than destroy, relationships.
At times, even in disputes that involve money, it becomes clear to neutral parties that they must mend the relationship before the money issue can be resolved – this means including integrative bargaining. In order to be successful in integrative negotiations all the interests on both sides must be identified and fears must be addressed. The goal is to have both sides work on a solution that will be beneficial to both and allow their relationship to remain intact.
While there are many ADR processes, they all utilize either distributive or integrative strategies; or a combination of both. These processes cover a wide spectrum from binding arbitration normally narrow in scope to reconciliation being a lengthy process focused on mending relationships between people, races, religions and even countries.
If the dispute you are involved in has a fixed quantity to work with and the other party is not a friend or someone with whom you must maintain a relationship, then you could chose from court ordered adjudication, arbitration (binding or non-binding), mediation (non-binding); but consider the time and the expense of court. Consider too, that ADR can also be expensive and if you chose to go to court when ADR fails, then you can be faced with great expense. The process here will be the distributive type – adversarial, demanding concession, win at all cost.
If, on the other hand, the dispute involves friends or lasting relationships, you might wish to avoid court and work to maintain those relationships. Here the process will be the integrative type – parties are joint problem solvers, focusing on interests, and working toward a wise decision that is good for all. You could utilize mediation, a reconciliation process, restorative justice or restitution among others.
The deciding factors in your decision of whether to go to court or utilize one of the many ADR methods will be the type of dispute, the outcome you desire, the relationship you have with the opposing party, and the cost involved in each. Should you decide on ADR, then you will need to decide whether this will be a distributive or integrative negotiation.